He Said She Said

10.05.13

Debating The Abortion Wars

An anti-abortion author and a pro-choice feminist blogger discuss their differing views on Roe v. Wade and U.S. reproductive law.

Clarke Forsythe is the author of Abuse of Discretion: The Inside Story of Roe v. Wade and the past president and current Senior Counsel for Americans United for Life, an anti-abortion non-profit whose goal is to accomplish “comprehensive legal protection for human life from conception to natural death.” He spoke with Jaclyn Munson, the founder and editor-in-chief of Onward and F-Word, about their differing views on Roe v. Wade and abortion law in the States. The result was something rare in the culture wars: a nuanced and respectful discussion about abortion in America.

Jaclyn Munson: My first question, so the readers can get a sense of your background, you were President of Americans United for Life for 27 years, is that right?

Clarke Forsythe: I’ve been with the organization for 28 years. I was President for about a decade.

And what’s informed your pro-life beliefs?

The study of American legal principles and the common law, and American constitutional law.

And why did you decide to write this book? What are you hoping that the readers and the public can get from this literature?

Well, I think this is the most important book written about Roe since Roe for the simple reason that the papers of eight of the nine justices who voted in Roe have been released to the public and most in the past 15 years. And I have simply had a chance to review them and they are a key to understanding how Roe v. Wade came out.

You say that “Roe and Doe began, in the Supreme Court, as a serious procedural mistake that left the Justices without any factual record to consider the complex historical, legal, medical and constitutional issues surrounding abortion.” And then you go into Griswold v. CT and how this set precedence for the Roe v. Wade decision. It seems logical to me that—because constitutional protection was extended to the privacy of two married people to make a decision about whether or not they want to have a child—that protection should then be extended to an individual woman. Any argument against this invalidates a woman’s autonomy and insinuates that perhaps she is unable to make decisions about her body without a partner.

Well, Roe v. Wade’s foundation on judicial precedent is extraordinarily weak because Griswold was the main judicial precedent that the attorneys and the justices were relying upon. And I think that the weakness of Griswold was evident by the fact that they relied so heavily, and it was so influential that former Justice Tom Clark’s article was so heavily relied upon and quoted upon to bridge the, shall we say, “gap” between Griswold to Roe v. Wade. Griswold was of course initially based on marital privacy as the Justice’s discussions and the opinion itself says, and Griswold was based upon marriage and its foundation in American common law, in English common law, deeply rooted in the American legal heritage. Abortion, before the ‘60’s… can’t be said to be deeply rooted in American legal or constitutional history. As a political statement, as a philosophical statement, it of course can be argued that abortion is necessary for autonomy—but as a constitutional principle, it allows the justices to impose it on the country.

I’m wondering whether you believe you take a literalist approach to the Constitution and whether that can be defended in a society that still does not view, treat or protect everybody equally?

Well, the current rationale that holds the justices to Roe v. Wade is basically results, good policy. The justices think their abortion right is good policy and it’s brought good results. And that’s what holds them to Roe today. But just saying it’s good policy is far afield from whether the justices are themselves limited to the Constitution and have to apply the Constitution that the American people ratified—and under current judicial doctrine of substantive due process, they can only do that if they identify a right that is deeply rooted in the American legal tradition and American law, American constitutional law. And that’s not abortion, and only that within current judicial doctrine would authorize the justices to impose this philosophical principle on the American people.

Wouldn’t you be able to say then, the philosophical principles—I mean, the right to life and personhood—that are up for debate are often very subjective? How can you defend the regulation of something that is subjective, like that when the right to life of a fetus or an unborn child is not equal to that of the woman?

Well, the comparison you’re making is one that the people should decide through their elected Representatives and at the state level because that’s where the Constitution left it. And the Supreme Court’s record as the ‘national abortion control board’ has been near-to-disastrous. The simple comparison of right to life versus right to abortion does not take into consideration the health ramifications of abortion, the growing body of international peer-reviewed medical studies that have been published over the last 20 years, since 1992 at least, showing—I mean, there are now more than 130 peer-reviewed international medical studies finding an increased risk in pre-term birth after abortion, and many other medical studies on other risks. It doesn’t take into consideration the fact that in some ways it’s a public health issue—the Court can’t regulate, it can’t intervene in public health crises or scandals, the Court has created a public health vacuum through its decision in Roe v. Wade, it has led directly to scandals such as Kermit Gosnell in Philadelphia, because the Court created a public health vacuum. And all of those are debatable public health issues that are best left to the people.

Senior Counsel for AUL Clarke Forsythe and his new title. (via Americans United For Life)

You talk about the issue of Kermit and I know you mentioned Dr. Stephen Brigham in one of the later chapters. I’m pro-choice and I don’t know any pro-choice advocate who would ever defend what they have done. You have these rogue providers and I think what that speaks to is the fact that there are women who aren’t getting access to the healthcare they need. And you speak about calling it a “myth” that abortion is safer than childbirth—there’s a 2012 study by Dr. Elizabeth Raymond of Gynuity Health Projects and Dr. David Grimes at University of North Carolina Medical Center at Chapel Hill, who found that between 1998-2005, one woman died during childbirth for every 11,000 or so children born, compared to one woman out of 167,000 who died from a legal abortion.

I’m very familiar with that study. It’s bad data and it’s bad methodology. In large part because it admittedly rests on simply estimates. That’s all it rests on, is estimates. And you can’t compare the published abortion mortality rate with the published childbirth mortality rate because what goes into the numerators and denominators of each of those rates is completely different. They are like apples and oranges. And the Raymond study cuts no new ground because it is simply based and admittedly based on estimates. No hard numbers. And their definitions and their methodology is just off.

You cite Priscilla Coleman as one of the leading researchers on abortion and risks. But the American Psychological Association has discounted a lot of her research as being “logically inconsistent” and “substantially inflated” due to faulty methods and other researchers were unable to reproduce her studies, which indicates that the research was neither reliable nor valid—two qualities that signify whether the study and the data can be trusted. Do you think that it’s misleading to present her as quoting what should or should not be going into the research that you supported in your book?

Well, I am not a PhD, I am not a statistician, I am summarizing the data and I am urging to look at the studies and the data itself rather than what any association says about the data. It’s important for people to look at the data, it’s important for women to talk about the data and the studies with their doctors and not rely upon what any interest group says about the data. And of course, Priscilla Coleman is one researcher among many and among hundreds of published studies from many international countries—I mean, in that chapter I cite data from European countries, Scandinavian countries, Latin American countries and Australia and New Zealand and countries around the world. So, it’s simply not tenable to critique the entire body of international data because of criticisms of any one researcher.

But you’re using that person to validate claims in your book so there’s a little bit of relevance. In your chapter called “Detrimental Reliance,” where you speak about the association between abortion and breast cancer—the National Abortion Federation states that “no causal relationship between abortion and breast cancer has been scientifically established” and the National Cancer Institute stated in March 2003 that “newer studies consistently showed that no association between induced and spontaneous abortion and break cancer risk.” Even later on, cancer.gov has stated that until the mid-1990s, these studies and what these studies have claimed to have found, were flawed. Do you think that presenting that data to support your argument is misleading?

There are numerous studies, there are a couple dozen studies, if not more, published since 1957 looking at an association or no association between abortion and breast cancer. And as I say in the book, there are studies that have found an association and there are studies that have not found an association. And no one study either establishes or refutes an association. And I acknowledge in the book that there are studies that have found association and studies that have found no association—and, that research needs to go forward. And newer studies need to be taken a look at as well… so, there is no current study and I certainly wouldn’t want to rely upon any interest group, in saying that there is no association whatsoever. Given the data going back to 1957, it’s simply not tenable to say there’s no association and it’s been proven.

I want to get back to the legal aspect. Many studies document the dangers of unsafe abortion, citing that globally, 68,000 women die each year from unsafe abortions and nearly half of all abortions in the world that occur every year—which is about 42 million—are unsafe. One of the ways to prevent unsafe abortions and protect women is to have less restrictive abortion laws—Planned Parenthood, the Guttmacher Institute, the World Health Organization have all echoed this. You know the dialogue that I often hear from pro-life advocates is that restrictive measures actually protect women—but you look at what happened to Gerri Santoro back before Roe, that picture of her dead in her hotel room after having an illegal abortion, kind of proves these things wrong. How can you still defend these restrictive measures and abortion bans that make it harder for women to get access to safe healthcare?

Well, the international data you cited is simply not reliable.

This was an American study.

The number of international abortions, the number of women dying from “illegal” or “unsafe abortion,” are based on vague and unreliable definitions. They’re based on estimates that are unreliable.

I’m just going to cut in for a second, how to do you define an unsafe abortion?

Well, my definition is completely irrelevant to analyzing a domestic or international study that uses that definition.

But it’s relevant to your book, right?

That’s neither here nor there. But I would—you know, studies continue which point to the impact on maternal mortality from abortion laws, that limit abortion. In Ireland, studies that have come out in the last couple of years showing that Ireland has a lower maternal mortality rate than surrounding countries that have liberal abortion laws like Scotland, Wales and Great Britain. There’s a 2012 study out about Chile, in the 50 years that Chile has lived under a strong abortion limit, showing that maternal mortality has consistently declined. And the data in these countries tends to be better than the data out of the U.S. because the U.S. has such a dysfunctional abortion collection and reporting system because we don’t have a centralized health system and countries that do have centralized health systems that pay for every abortion tend to have better data, ironically. So those are at least some of the data that I point to in the book and I think it’s far from clear that countries with liberal abortion laws have better women health trends than countries with restrictive abortion laws. There seems to be growing data just the opposite.

In that same vein, the reason that people like Kermit Gosnell and Stephen Brigham operate is because … you force women into situations in which they are forced to make decisions about their life that perhaps they don’t want. I think, when you’re looking at these international studies, you also have to look at the poverty rates with places like Chile where there are a lot of single women living in poverty with a lot of children, because when you’re limiting women’s access to healthcare and abortion, you’re kind of sending her into this vacuum that’s going to potentially destroy her life and keep her in poverty.

But those types of policy and sociological arguments should be taken to the American people in elections, and to state legislatures in formulating public policy. None of them justifies the Court imposing Roe v. Wade for 40 years and none of them justify the Court continuing to impose Roe v. Wade. Those are strong public policy and sociological arguments that should be taken to the American people in elections and to state legislatures and Congress.

Speaking to that, when you talk about leaving the issue up to the states—and this is something I’ve spoken to a lot of pro-life advocates about who feel the same way—I think the issue that you have there is that some states are creating their own requirements about what information women are given when they go to get an abortion, and [about the] consent process that occurs between the physician and the woman. Physicians were going to be required to include information about fetal pain at 20 weeks, something the American Medical Association doesn’t have enough evidence to really say whether that occurs and when that occurs. I’ve been to Crisis Pregnancy Centers, I’ve gone undercover to those places; I work at NYU School of Medicine full time, my cousin is an OBGYN, and the information that they were giving me was just not accurate. Telling me that I would die if I would get an abortion. So I think that when you have all of these states quite frankly making up this information that a woman has to hear, I don’t know if we can trust the states.

Well, you have a fascinating background in medicine and perhaps we can talk about it more sometime in the future. But for purposes of today, you know, the pros and cons of various medical policies, the pros and cons of various abortion policies, are exactly the kinds of arguments that are best dealt with in the state legislatures and in Congress, which deal every day with alternative public policy measures and whether they are good or bad. You know the policies you critique from Kansas, or any other state, can be reviewed by the people of that state, and if it turns out to be a bad public policy it can be reversed. But the potential for bad public policy never justifies judges imposing their vision on the American people without Constitutional warrant.